Princess Anne and the EU.
Written by Nina Craig (May 2006)
I intent to tackle the problem concerning who would take the throne after the current Queen, if her son Prince Charles was to die. It is reported that Charles’s eldest son Prince William will be next in line for the throne, however Princess Anne (sister of Prince Charles) has her own ideas.
I intend to discuss whether or not Princess Anne is right in challenging the assumption that a male must be next in line to do the job of the Monarch, therefore meaning that she is entitled to the throne. She also argues that EU law must take priority over the Act of Settlement 1701 (which provides for a male heir to the throne.) I will discuss Article 141 of the Treaty of Rome, which refers to equal treatment of men and women in matters of employment and occupation, along with the EU Equal Treatment Directive 76/207 which also explores sex discrimination.
Princess Anne believes that she is more experienced than Prince William and will therefore be able to carry out the role of Monarch far better than he is capable of doing. The reasoning for which William would be appointed, is purely on the basis of sex, as stated in the Act of Settlement 1701 (which has regulated the succession to the throne of Great Britain since June the 12th of that year) it states that a male will have heir to the throne. Therefore, Princess Anne feels she is being discriminated against, for reasons based on gender and can therefore take necessary action in the following way.
Article 141 of the treaty of Rome refers to equal treatment of men and women in matters of employment and occupation. (In 1999 the Amsterdam Treaty further broadened article 119 from that of 'equal pay' to article 141 being 'equal pay for male and female workers for equal work or for work of equal value'.)
In order to see whether Princess Anne can use Article 141 of the Treaty of Rome in her favour, it must be decided whether or not this is an employment issue. Many would argue that this is not in fact an employment issue, as the role of Monarch is hereditary and it is not open for others to apply for. Although the person in this post is given certain duties just as any other employee, I do not believe that this is an employment issue, as the circumstances are different to that of a regular position. However I will still consider this Act.
All treaties signed by our head of government become law automatically, as a result of the European Communities Act 1972 section 2 (1) (stated in the statement “are without further enactment to be given legal effect”). This allows individuals to rely on Community law, as demonstrated in a number of cases. For example in Van Duyn v Home Office (1974) the European Court of Justice held that an individual was entitled to rely on Article 39 giving the right to freedom of movement.
Citizens in the UK are entitled to rely on the rights in the Treaty of Rome and in other treaties, despite the fact that they may not have been exclusively enacted in English Law. This was portrayed in the case of Macarthy’s Ltd v Smith (1980), when Wendy Smith’s employer paid her less then her male predecessor, for exactly the same job. Unfortunately for Wendy Smith, there was no breach of English Domestic law, for the reason that the two individuals were not employed at the same time. However, the European Court of Justice were able to confirm Wendy’s claim that the company who employed her was in fact in breach of Article 141 of the Treaty of Rome, over equal pay for men and women. However, although this Act concentrates on discrimination on gender basis, Princess Anne’s situation does not apply to equal pay issues and is not an ordinary employment case. This is likely to mean that she will be unable to rely on this article.
If the case was to follow and Employment Tribunal, they may feel that they do not have the expertise to deal with such an issue and due to the complexity of this case, they are undoubtedly going to refer it to the European court of Justice. This is because they may feel they need to clarify important points of the European Law and is known as a preliminary ruling. The second key function of the European Court of Justice is to hear references from national courts to hear preliminary rulings, on points of European law, which is completed to ensure that European law is indeed uniform in all Member States in the European Union. The process of deciding whether or not a preliminary ruling is needed is known as a discretionary referral. The guidelines for when a discretionary referral is necessary, was set in the case Bulmer v Bollinger (1974) by the court of appeal. Included in the points made was ‘Guidance on the point of law must be necessary to come to a decision in the case’ which of course applies to Princess Anne’s case (the first case to be referred to the European Court of Justice by an English court was Van Duyn v Home Office (1974))
Equal Treatment Directive 76/207 (used for a wider range of issues)
This directive puts forward that there shall be no discrimination whatsoever on the grounds of sex in the conditions, including; selection criteria for access to all jobs, whatever the sector or branch of activity and to all levels of the occupational hierarchy. This mean that Princess Anne has a far better chance of relying on this directive as it covers a much wider spectrum in terms of occupation. The position that Princess Anne wishes to undertake is in fact a state post, meaning she qualifies for use of the directive. An example of a case that was able to rely on this directive is Marshall V Southampton and South West Hampshire Area Health Authority (1986). In this case Miss Marshall was required to retire at the age of 62, whilst men doing the same work did not have to retire until the age of 65. However, this was not seen as discriminatory under the Sex Discrimination Act 1975. Despite this, she was able to rely on the Equal Treatment Directive 76/207 and therefore succeed in an action for unfair dismissal. This was possible as the ECJ stated that the directive was sufficiently clear and imposed obligations on the Member State (even though this directive had not been fully implemented in the UK). It had vertical direct effect, which meant that the Member State could not take advantage of its own failure to comply with EU law and implement a directive, therefore the directive can be relied upon when bringing a claim against the state.
As shown in the case of Diocese of Hallam Trustee v Connaughton (1996), European law has had a growing influence on the British courts, in that they are now prepared to apply European treaty law directly, as opposed to waiting for the ECJ to make the ruling point. In this case Joseohine Connaughton was employed as a director of music by the Diocese of Hallam from 1990 to September 1994, at which time her salary was £11,138. She left her position and it was then advertised offering a salary of £13,434, but the individual selected for the post (a man) was actually appointed at a salary of £20,000. This case was then considered by the Employment Appeal Tribunal, which considered Article 141 of the Treaty of Rome and stated;
“We are sufficiently satisfied as to the scope of Article 141 of the Treaty of Rome, so as to decide this appeal without further reference to the European Court of Justice. Therefore less referrals are being made and if the court understand the EU law that contradicts the Act which is preventing Anne heir to the throne, than they may not refer the case to the European Court of Justice (however this is unlikely).
However, if Anne’s position as Monarch was not considered an arm of state, than she would be unable to rely on this directive (as it would mean that the directive has horizontal effect). There is however another option that she could take known as the Francovich claim (However no such a claim has yet been successful in the UK) . This was created because it was seen as unfair that conflicting doctrines of horizontal and vertical effect give rights to some and not others, therefore, this is seen as a way of claiming damages against a state, who has failed to implement an EU directive. The claim was established in the case of Francovich v Italian Republic (1991) where the Italian Government failed to implement a directive aimed at protecting wages of employees, whose employer became insolvent. Due to this, Francovich was able to claim damages from the state, when the company he worked for went into liquidation owing him wages, thereby suing the state for his financial loss. He was able to do this as the European Court of Justice held that he was entitled to compensation.
To conclude Princess Anne is able to rely on these provisions, for the reason that they are directly applicable, and the directive covers all levels of the occupational hierarchy. Position of Monarch is a job of the state (as ruled by the ECJ in Foster v British Gas plc (1990), which stated that a state was “A body whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable, in relations between individuals.”) Meaning that this directive applies to her.
Therefore Princess Anne could rely on this directive, as her position as Queen is being affected because of her gender.
Sovereignty.
In becoming a member of the EU, our state passed over its sovereignty rights to the European Union, thereby meaning that EU law takes supremacy over our national law and therefore in the case of Princess Anne, would take sovereignty over the Act of Settlement 1701. This means that no Member State can rely on their own law when it is in conflict with the European Law, as any Community law which is enacted in accordance with the power laid down in the Treaties, has priority over any conflicting law of Member States. This is demonstrated in the case of Van Gend v loos (1963) in which a conflict with the Dutch law and European law on customs conflicted. The Dutch government debated that the European Court of Justice had no jurisdiction to decide whether European law should have supremacy over Dutch law. This argument was discarded. Similarly in 1964 in the case of Costa v ENEL the European Court of Justice held that even if there was a later national law it would not take precedence over European Law. This is also demonstrated in the case of Factortame (1990) when the European Court of Justice decided that Britain could not enforce the Merchant Shipping Act 1988, which had been enacted to protect British Fisherman (as many Spanish fisherman were operating in UK waters) by allowing vessels to register only if 75 per cent of directors and shareholders were British nationals. It was held that it contravened the Treaty of Rome.
If Princess Anne was to take the throne this would contradict the Act of Settlement 1701. However she can rely on sources of European law, as in cases such as these EU law takes precedence, as the idea is that the European Law is uniform in all Member States. If for any reason she is unsuccessful in claiming damages than she may be successful in pursuing a Francovich claim.
Question 2- Mary is a director of Macbeans the bean factory. She is upset that – in accord with the law of her Member State – her employer only pays her a maximum of 1m on her retirement, while men can get 2m. I intend to advise Mary as to her options in light of the EU Treaty, the Equal Treatment Directive and any case law.
This is clearly a sex discrimination case, as Mary is being discriminated against on basis of sex. Her male processor is receiving a much higher retirement settlement, for the same role in which Mary has fulfilled. This is unacceptable and a breach of human rights concerning equal treatment.